Ask CRA – July 2021 Edition
You asked. We answered! Instead of the usual monthly webinar, this July we’ve compiled several ‘Ask CRA’ questions in one, handy place.
CRA Legal Partner Robinson Di Lando
Question: I know as of July 1, 2021, I am required to offer a 401k retirement plan to my employees. Am I required to contribute to their retirement plan too?
Answer: In 2016, California passed a bill requiring employers with 50 or more employees to offer a retirement plan to employees by June 30, 2021. Employers with five or more employees have until June 30, 2022. Employers can satisfy this requirement by (1) enrolling in a state run program called CalSavers, or (2) offering a private market 401(k) retirement plan. Employers are not required to match or contribute to employee retirement plans under this newly implemented legislation.
To learn more about the CRA 401k program from Transamerica and Tag Resources, please visit our website.
CRA Legal Partner Berliner Cohen
Question: Where I can find the state or federal restaurant chair and table approved heights and dimensions? Is there such a thing?
Answer: The dimensions of an accessible table are as follows. Small businesses can refer to the ADA Guide for Small Businesses. It is found here.
- Table height 34″ maximum, 28″ minimum
- Knee clearance 27″ minimum (from floor to bottom of table surface)
- Clear floor area of 30″ by 48″ needed at each seating area
- Knee clearance extends at least 19″ under the table
Need ADA compliant tables for your restaurant? CRA Members receive $75 off towards their order. Visit Rockless Table today to learn more!
Looking for more information about this topic? Check out the Defending a Title III ADA accessibility claim Industry Insight.
CRA Legal Partner Weintraub Tobin
Question: Is it true that my employees are allowed to waive their meal period if they don’t work more than 5 hours in one day? If true, where can I buy that form?
Answer: Employees may waive their meal period if the employee works no more than 6 total hours in the workday. Employees who work at least 10 hours in a workday are entitled to a second meal period, but may elect to waive the second meal period provided the employee works no more than 12 hours in the workday and the employee did not waive the first meal period. In both instances, the waived meal period must be mutually agreed to by the employer and employee. While not required, it is recommended that any such waiver be in writing. A template for a meal period waiver form is provided to CRA Members here.
Looking for more information about this topic? Check out the Meal and rest period policies in California Industry Insight.
CRA Legal Partner Wilson Elser
Question: May I include Shift Leads in the tip pool?
Answer: It depends. Persons who are in supervision including owners, managers and supervisors of the business are prohibited from participating in a tip pool even if they provide direct table service. This is the case even if the guest intended to leave the tip for an owner, manager, supervisor, or agent of the business who actually provided service to the patron. Given the broad definition of the Labor Code, an agent could include a floor manager or shift lead (supervisor) if that person has the ability to direct or control the acts of employees. If the individual spends more than 50% of the time doing supervising duties then they cannot participate in a tip pool even with the title of Shift Lead. However, court decisions have allowed shift leads in certain situations to share in gratuities. This situation was dealt with in lawsuits by Starbucks baristas as to company’s practice of permitting shift supervisors to share tips. If the shift lead (supervisor) performs the same tasks as the other line employees i.e. their primary duty was to serve food and drinks, they can share in the tip pool. Chau v. Starbucks, Corp. 174 Cal App 4th 688 (2009). Before deciding if a shift lead can participate, you need to look at the duties performed. If the duties are more supervisory, shift leads cannot share in tips. If the duties are akin to the line staff i.e. servers, bussers, etc, the shift lead can share in the tip pool.
Looking for more information about this topic? Check out the Employer-mandated tip pooling guidelines Industry Insight.
CRA Legal Partner Zaller Law Group, PC.
Question: I heard the minimum wage went up last week. Is that true? If so, what did it go up to?
Answer: Yes, many local cities and counties across California implemented minimum wage increases on July 1, 2021. California’s state minimum wage did not increase on July 1, as it is set to increase on January 1 of each year. Employers must pay their employees the higher of the state minimum wage or any applicable local minimum wage that covers their employees.
The California Restaurant Association provides a list of all local minimum wages across California at this link.
The analysis of which minimum wage applies to a company’s employees focuses on where the employee is performing the work, not where the employer’s office or headquarters is located. For example, the Cities of Santa Monica and Los Angeles assert jurisdiction over employees who work within their jurisdiction for only two hours a week:
- Santa Monica: the law applies to any employee working a minimum of two hours within Santa Monica in a given week (even if employer is located outside of Santa Monica).
- City of Los Angeles: the law applies to “[a]n employee … who performs at least two hours of work in a particular week within the City of Los Angeles….”
Employers must remember to address a few items when the minimum wage increases for their employees:
- Many local jurisdictions require workplace posters, and employers need to ensure the posters are posted in the workplace, and are updated to reflect the applicable minimum wage.
- Employers must also update the employee’s overtime rate for payroll purposes.
Also, remember that the salary required to qualify as an exempt employee is based on the state minimum wage, not the local minimum wage that may apply to the employee. Therefore, the salary required to qualify as exempt does not increase with the July 1, 2021, local minimum wage increases – it only increases when the state minimum wage increases. To qualify as exempt from the requirement of having to pay overtime to the employee, the employee must perform specified duties in a particular manner and be paid “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” (Lab. Code, § 515, subd. (a)). In 2021, the California state minimum wage is $13 per hour for employers with 25 or less employees, and $14 per hour for employers with 26 or more employees. Therefore, to qualify as exempt for the professional, executive and administrative exemptions, employees must receive a minimum annual salary of $54,080 ($4,506.67 per month) for employers with 25 employees or less, and $58,240 ($4,853.33 per month) for employers with 26 more or more employees.
Here are a few links to cities and county posters in Southern California:
- Pasadena: (English)
- Santa Monica (English) | (Spanish)
(Note: Employers in Santa Monica are required to post both English and Spanish notices, even if they do not employ any Spanish speaking employees)
- San Diego: (English)
- Malibu: (English)
- City of Los Angeles: (English)
- County of Los Angeles: (English)
Posters in other languages may also be downloaded from links on the local jurisdiction websites.
This information was reviewed in 2021 by the CRA Legal Partners. The CRA Legal Partners provide this information for general informational purposes only. The information is not, and should not be relied upon or regarded as, legal advice. No one should act or refrain from acting on the basis of such content or information, without first consulting with and engaging a qualified, licensed attorney, authorized to practice law in such person’s particular jurisdiction, concerning the particular facts and circumstances of the matter at issue.